Government Forced to Release Docs on Spying Program

Last week’s release of 900 pages of U.S. government documents
dealing with the implementation of the nation’s primary
surveillance law suggests that the government has been
systematically violating the privacy rights of U.S. citizens.

How many citizens is unclear, since the documents were
extensively redacted. The previously secret internal
documents were obtained through a court battle by the
American Civil Liberties Union (ACLU).

The government declined to disclose the number of citizens
who had their telephone calls, e-mail, or other
communications intercepted under the Foreign Intelligence
Surveillance Act (FISA) Amendments Act (FAA) of 2008. They also
declined to discuss any specific abuses, the ACLU said.

The 900 documents were delivered in keeping with a
previously agreed schedule.

Alex Abdo, a senior attorney with the ACLU, told IPS, “For
two years now, the government has had the authority to
engage in the dragnet and unconstitutional surveillance of
Americans’ communications with little to no oversight of its
actual surveillance decisions.”

“This week’s disclosures confirm that the government
repeatedly abused even the minimal, and unconstitutional,
limits set out in this new surveillance authority,” he
added. “Although we know that abuses occurred, the
government has withheld all critical details about them.”

The lawsuit seeks to enforce a November 2009 Freedom of
Information Act request for records related to the
government’s interpretation and implementation of the FAA,
including reports and assessments mandated by the law
concerning how the FAA is being used, how many citizens are
affected and what safeguards are in place to prevent abuse
of privacy rights.

Prior to the government’s release of last week’s 900 pages,
it had not released any of the records requested. The
lawsuit alleges that the requested records are needed to
enable informed public debate about whether the FAA – which
expires in 2012 – should be repealed, amended or extended.

In July 2008, the ACLU and the NYCLU filed a landmark
lawsuit to stop the government from conducting surveillance
under the FAA on behalf of a broad coalition of attorneys
and human rights, labor, legal, and media organizations
whose work requires them to engage in sensitive and
sometimes privileged telephone and e-mail communications
with colleagues, clients, journalistic sources, witnesses,
experts, foreign government officials, and victims of human
rights abuses located outside the United States.

A district court dismissed the case, ruling that the
plaintiffs could not challenge the secret surveillance law
because they could not prove that their own communications
had been monitored under it.

The ACLU and NYCLU appealed that ruling and have asked a
federal appeals court to reinstate the case. The groups
argued that, because of the secret nature of the FAA, the
law may never be subject to judicial review at all if
Americans are prohibited from challenging it unless they can
show that their own communications have been collected.

“It is unfortunate that once again we have to sue over the
secrecy that continues to shroud so much of our government’s
work,” said NYCLU Associate Legal Director Christopher Dunn.
“While we have seen recent improvements in transparency,
much more remains to be done before we have a truly open
government.”

Attorneys on the case are Alex Abdo and Jameel Jaffer of the
ACLU and Dunn and Arthur Eisenberg of the New York Civil
Liberties Union.

However, routine oversight reports carried out by the
government itself acknowledge ongoing violations of legal
parameters and civil rights that limit when citizens are
targeted and minimize the amount of data collected.

As noted by the Washington Post, “The documents note that
although oversight teams did not find evidence of
‘intentional or willful attempts to violate or circumvent
the law … certain types of compliance incidents continue to
occur,’ as a March 2009 report stated.”

The Post goes on to assert that the unredacted portions of
the reports refer only elliptically to what those actions
were, but the March 2009 report stated that “information
collected as a result of these incidents has been or is
being purged from data repositories.”

ACLU attorneys say violations of the FISA Amendments Act’s
“targeting and minimization procedures … likely means that
citizens and residents’ communications were either being
improperly collected or targeted or improperly retained and
disseminated.”

The Foreign Intelligence Surveillance Act of 1978 is an Act
of Congress which prescribes procedures for the physical and
electronic surveillance and collection of “foreign
intelligence information” between “foreign powers” and
“agents of foreign powers” – which may include U.S. citizens
and permanent residents suspected of being engaged in
espionage and violating U.S. law on territory under United
States control.
The act was amended in 2001 by the USA PATRIOT Act,
primarily to include terrorism on behalf of groups that are
not specifically backed by a foreign government. Lawmakers
amended the 1978 law again in 2008 to “broaden and clarify
legal authorities” after the Sept. 11, 2001, terrorist
attacks and advances in internet communications prompted
fresh concerns over expanded surveillance powers.

The ACLU, human rights activists, and other parties sued,
charging that the new law is unconstitutional, violating the
Fourth Amendment’s prohibition of unreasonable searches.

A U.S. district judge dismissed the case, but the ACLU
appealed the verdict, which is still pending. Meantime, the
ACLU has pursued the related Freedom of Information Act
request.